by Paul Alan Levy
A state District Court in Dallas (Judge Jim Jordan of the 160th District) has struck down a lawsuit over a non-disparagement clause in a form consumer agreement, holding that it could not be enforced against a consumer who expressed dissatisfaction about the service provided by a local business. Although we have won default judgments in Utah against Kleargear and in New York against Accessory Outlet, this case represents the first time a company defended its non-disparagement clause with a brief, and thus the first time we have had a judge’s ruling refusing to enforce such a clause.
Background of the Ruling
The order arose because Michelle Duchouquette, a consumer in Plano, Texas, expressed her dissatisfaction on Yelp about some of the policies of Prestigious Pets. While she and her husband were away on vacation, she noticed from security cameras in their home that the bowl containing their pet fish had become cloudy, a sign of overfeeding. She felt that, had Prestigious Pets provided a way for her to get directly in touch with the assigned pet sitter, such problems might be avoided. Prestigious Pets then brought suit in a small claims court, seeking a few thousand dollars in damages as well as an injunction. The company claimed both defamation and breach of the non-disparagement clause which, unbeknownst to Michelle Duchouquette and her husband Robert, had been inserted into the fine print of the pet-sitting contract. The Duchouquettes retained counsel and filed a motion to dismiss under the Texas anti-SLAPP statute.